One of the most difficult things to deal with in family law is when one parent denies access to the other. This normally occurs in one of two ways: (1) simply not dropping off the children for access or not being around when the other parent arrives to pick up the children for access; and (2) “overholding” the children – i.e. returning the children late, sometimes by an entire night. I find that it’s particularly problematic around holidays and also where parents live in different cities.
From a legal point of view, the options for dealing with this are unfortunately limited:
1. Usually your lawyer can’t do anything immediately as access changeovers often occur on or near weekends. Even if your lawyer manages to reach the other parent’s lawyer, chances are the other parent is not just denying access, but also avoiding their lawyer’s telephone calls.
2. The police generally won’t help you. Normally their excuse will be that your agreement or court order isn’t specific enough. For instance, if you have access every second weekend, it won’t be clear whether this is your access weekend or not. But even if your agreement or court order is specific, it is rare that the police will want to get involved. They’ll probably tell you to speak with your lawyer.
It’s extremely frustrating to have time and plans with your children ruined without any notice. So, what can you do? Here are my suggestions:
1. Keep your cool. If this is the first time this has happened, there may well be legitimate reasons why the other parent is delayed.
2. If you have a chance, go to court on an urgent basis to get an order directing the police to enforce the visitation order. This is a good option for a longer access period – say, if the children were to spend their spring break with you.
3. Keep trying to pick up your children. If you’re supposed to be spending a specific time period with your children, there’s nothing wrong with going to the other parent’s home many times to try to pick up your children. Even if the other parent is the one who is supposed to drop the children off at your home, it may make sense for you to try to pick up your children.
4. Document everything. A stern letter should immediately be sent to the other parent or their lawyer. My experience is that these letters normally are not answered, so you should chase this up. The point of this is to create a paper trail so that in the future you can show (if you need to) the other parent’s pattern of access denial.
5. Demand make up time. Depending on the situation, this may or may not be feasible. Make up time is probably what’s best for the children anyhow.
6. If a parent is persistently late returning the children, go to court to get the changeover time modified to an earlier time. Also, consider picking up the children yourself rather than relying on the other parent.
7. If your case hasn’t been resolved yet (i.e. you only have a temporary or interim order for access), use the denials of access to build a case as to why you should get sole custody. One factor courts consider in awarding custody is the willingness of each parent to facilitate access to the child by the other parent.
8. The last resort for dealing with persistent denial of access is by bringing a motion for contempt of court. As I discuss, there are a lot of difficulties in proceeding this way, but if the other parent is persistent in denying access you really have no choice. The keyword is persistent: it generally not worth going to court about an occasional missed access period.
SOURCE: Ottawa Divorce Blog